Exhibit 10.1


 


EXECUTION COPY


 


 


REGISTRATION RIGHTS AGREEMENT


 


 


Dated March 24, 2005


 


 


between


 


 


PROGRESS RAIL SERVICES CORPORATION


PROGRESS METAL RECLAMATION COMPANY


THE GUARANTORS NAMED HEREIN


 


 


and


 


 


MORGAN STANLEY & CO. INCORPORATED


J.P. MORGAN SECURITIES INC.


 












 


THIS
REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into March
24, 2005, between PROGRESS RAIL SERVICES CORPORATION, an Alabama corporation
(“Progress Rail”), and PROGRESS METAL RECLAMATION COMPANY, a Kentucky
corporation (“Progress Metal” and, together with Progress Rail, the “Issuers”
and each individually, an “Issuer”), the guarantor signatories hereto (each, a
“Guarantor” and collectively, the “Guarantors”), MORGAN STANLEY & CO. INCORPORATED and J.P. MORGAN
SECURITIES INC. (collectively, the “Placement Agents”).


 


This Agreement is made pursuant to the Placement
Agreement dated March 17, 2005, between PRSC Acquisition Corp. (“PRSC”), PMRC
Acquisition Co. (“PMRC”), Progress Rail Services Holdings Corp and the
Placement Agents (the “Placement Agreement”), which provides for the sale by
PRSC and PMRC to the Placement Agents of an aggregate of $200,000,000 principal
amount of PRSC’s and PMRC’s 7.75% Senior Notes due 2012 (the “Securities”) to
be jointly and severally guaranteed by the Guarantors. In order to induce the
Placement Agents to enter into the Placement Agreement, PRSC and PMRC and the
Guarantors have agreed to provide to the Placement Agents and their direct and
indirect transferees and the Market Maker (as defined herein) the registration
rights set forth in this Agreement. As of
the date hereof, PRSC merged with and into Progress Rail, with Progress Rail
surviving the merger, and PMRC merged with and into Progress Metal, with
Progress Metal surviving the merger. Progress Rail and Progress Metal have
assumed the obligations of PRSC and PMRC, respectively, under the Placement
Agreement as well as under the Securities. The execution of this Agreement is a
condition to the closing under the Placement Agreement.


 


 


In consideration of the
foregoing, the parties hereto agree as follows:


 


1.                                      
Definitions.


 


As used in this Agreement, the following capitalized
defined terms shall have the following meanings:


 


“1933 Act” shall
mean the Securities Act of 1933, as amended from time to time.


 


“1934 Act” shall
mean the Securities Exchange Act of 1934, as amended from time to time.


 


“Closing Date”
shall mean the Closing Date as defined in the Placement Agreement.


 


“Exchange Date”
shall have the meaning set forth in Section 2(a) hereof.


 


“Exchange Offer”
shall mean the exchange offer by the Issuers of Exchange Securities for
Registrable Securities pursuant to Section 2(a) hereof.


 


“Exchange Offer
Registration” shall mean a registration under the 1933 Act effected
pursuant to Section 2(a) hereof.


 


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“Exchange Offer
Registration Statement” shall mean an exchange offer registration statement
on Form S-4 (or, if applicable, on another appropriate form) and all amendments
and supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.


 


“Exchange Securities”
shall mean securities issued by the Issuers and guaranteed by the Guarantors
under the Indenture containing terms identical to the Securities (except that
(i) interest thereon shall accrue from the last date on which interest was paid
on the Securities or, if no such interest has been paid, from March 24, 2005 and
(ii) the Exchange Securities will not contain restrictions on transfer) and to
be offered to Holders of Securities in exchange for Securities pursuant to the
Exchange Offer.


 


“Guarantors” shall
have the meaning set forth in the preamble hereto and shall include any
Guarantor’s successor.


 


“Holder” shall
mean the Placement Agents, for so long as they own any Registrable Securities,
and each of their successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities under the Indenture; provided
that for purposes of Sections 4, 5 and 6 of this Agreement, the term “Holder”
shall include Participating Broker-Dealers (as defined in Section 4(a)) and,
where the context requires, the Market Maker.


 


“Indenture” shall
mean the Indenture relating to the Securities dated as of March, 24, 2005
between the Issuers, the Guarantors and The Bank of New York, as trustee, and
as the same may be amended from time to time in accordance with the terms
thereof.


 


“Issuers” shall have
the meaning set forth in the preamble hereto and shall include any Issuers’
successor


 


“Majority Holders”
shall mean the Holders of a majority of the aggregate principal amount of
outstanding Registrable Securities; provided that whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Issuers, any Guarantor
or any of their affiliates (other than the Market Maker) shall not be counted
in determining whether such consent or approval was given by the Holders of
such required percentage or amount.


 


“Market Maker”
shall have the meaning set forth in Section 6(a) hereof.


 


“Market Maker’s
Information” shall have the meaning set forth in Section 6(d) hereof.


 


“Market Making
Registration Statement” shall mean the registration statement referred to
in Section 6(a)(i) hereof and all amendments and supplements to any such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference


 


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therein.


 


“Participating
Broker-Dealer” shall have the meaning set for in Section 4(a) hereof.


 


“Person” shall
mean an individual, partnership, limited liability company, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.


 


“Placement Agents”
shall have the meaning set forth in the preamble.


 


“Placement Agreement”
shall have the meaning set forth in the preamble.


 


“PMRC” shall have
the meaning set forth in the preamble.


 


“Progress Metal”
shall have the meaning set forth in the preamble.


 


“Progress Rail”
shall have the meaning set forth in the preamble.


 


“Prospectus” shall
mean the prospectus included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by
any prospectus supplement, including a prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Securities covered
by a Shelf Registration Statement, and by all other amendments and supplements
to such prospectus, and in each case including all material incorporated by
reference therein.


 


“PRSC” shall have
the meaning set forth in the preamble.


 


“Registrable
Securities” shall mean the Securities; provided, however,
that the Securities shall cease to be Registrable Securities (i) when a
Registration Statement with respect to such Securities shall have been declared
effective under the 1933 Act and such Securities shall have been disposed of
pursuant to such Registration Statement, (ii) when such Securities may be sold
to the public pursuant to Rule 144(k) (or any similar provision then in force,
but not Rule 144A) under the 1933 Act or (iii) when such Securities shall have
ceased to be outstanding.


 


“Registration Expenses”
shall mean any and all expenses incident to performance of or compliance by the
Issuers and the Guarantors with this Agreement, including without limitation:
(i) all SEC, stock exchange or National Association of Securities Dealers, Inc.
registration and filing fees, (ii) all fees and expenses incurred in connection
with compliance with state securities or blue sky laws (including reasonable
fees and disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Securities or Registrable
Securities), (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements or other documents
relating to the performance of and compliance with this Agreement, (iv) all


 


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rating agency fees, (v)
all fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Issuers and
the Guarantors and, in the case of a Shelf Registration Statement, the fees and
disbursements of one counsel for the Holders (which counsel shall be selected
by the Majority Holders and which counsel may also be counsel for the Placement
Agent), (viii) the fees and disbursements of counsel for the Market Maker and
(ix) the fees and disbursements of the independent public accountants of the
Issuers and the Guarantors, including the expenses of any special audits or
“cold comfort” letters required by or incident to such performance and
compliance, but excluding fees and expenses of counsel to the underwriters
(other than fees and expenses set forth in clause (ii) above) or the Holders
and underwriting discounts and commissions and transfer taxes, if any, relating
to the sale or disposition of Registrable Securities by a Holder.


 


“Registration
Statement” shall mean any registration statement of the Issuers and the
Guarantors that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement, including, without limitation,
the Market Making Registration Statement, and all amendments and supplements to
any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.


 


“SEC” shall mean
the Securities and Exchange Commission.


 


“Securities” shall
have the meaning set forth in the preamble. 


 


“Shelf Registration”
shall mean a registration effected pursuant to Section 2(b) hereof.


 


“Shelf Registration
Statement” shall mean a “shelf registration statement of the Issuers and
the Guarantors pursuant to the provisions of Section 2(b) of this Agreement
which covers all of the Registrable Securities (but no other securities unless
approved by the Holders whose Registrable Securities are covered by such Shelf
Registration Statement) on an appropriate form under Rule 415 under the 1933
Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.


 


“TIA” shall have
the meaning set forth in Section 3(1) hereof.


 


“Trustee” shall
mean the trustee with respect to the Securities under the Indenture.


 


“Underwriters”
shall have the meaning set forth in Section 3 hereof.


 


“Underwritten
Registration” or “Underwritten Offering” shall mean a registration
in which Registrable Securities are sold to an Underwriter for reoffering to
the public.


 


2.                                      
Registration Under
the 1933 Act.


 


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(a) To the extent not prohibited by any applicable law
or applicable interpretation of the Staff of the SEC, the Issuers and the
Guarantors shall use their reasonable efforts to cause to be filed an Exchange
Offer Registration Statement covering the offer by the Issuers and the
Guarantors to the Holders to exchange all of the Registrable Securities for
Exchange Securities and to have such Registration Statement remain effective
until the closing of the Exchange Offer. The Issuers and the Guarantors shall
commence the Exchange Offer promptly after the Exchange Offer Registration Statement
has been declared effective by the SEC and use their reasonable efforts to have
the Exchange Offer consummated not later than 60 days after such effective
date. The Issuers and the Guarantors shall commence the Exchange Offer by
mailing the related exchange offer Prospectus and accompanying documents to
each Holder stating, in addition to such other disclosures as are required by
applicable law:


 


(i)                                    
that the Exchange
Offer is being made pursuant to this Registration Rights Agreement and that all
Registrable Securities validly tendered will be accepted for exchange;


 


(ii)                                 
the dates of
acceptance for exchange (which shall be a period of at least 20 business days
from the date such notice is mailed) (the “Exchange Dates”);


 


(iii)                              
that any Registrable
Security not tendered will remain outstanding and continue to accrue interest,
but will not retain any rights under this Registration Rights Agreement;


 


(iv)                             
that Holders electing
to have a Registrable Security exchanged pursuant to the Exchange Offer will be
required to surrender such Registrable Security, together with the enclosed
letters of transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice prior to
the close of business on the last Exchange Date; and


 


(v)                                
that Holders will be
entitled to withdraw their election, not later than the close of business New
York time on the last Exchange Date, by sending to the institution and at the
address (located in the Borough of Manhattan, The City of New York) specified
in the notice a telegram, telex, facsimile transmission or letter setting forth
the name of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is withdrawing his
election to have such Securities exchanged.


 


As soon as practicable
after the last Exchange Date, the Issuers and the Guarantors shall:


 


(i)                                    
accept for exchange
Registrable Securities or portions thereof tendered and not validly withdrawn
pursuant to the Exchange Offer; and


 


(ii)                                 
deliver, or cause to
be delivered, to the Trustee for cancellation all Registrable Securities or
portions thereof so accepted for exchange by the Issuers and the Guarantors and
issue, and cause the Trustee to promptly authenticate and mail to each Holder,
an Exchange Security equal in principal amount to the principal amount of the
Registrable


 


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Securities of such Holder so accepted for exchange.


 


The
Issuers and the Guarantors shall use their reasonable efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the 1933 Act, the 1934 Act and other applicable laws and
regulations in connection with the Exchange Offer. The Exchange Offer shall not
be subject to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the Staff of the
SEC. The Issuers and the Guarantors shall inform the Placement Agents of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Placement Agents shall have the right, subject to applicable law, to contact
such Holders and otherwise facilitate the tender of Registrable Securities in
the Exchange Offer. The Issuers and the Guarantors shall have the right to accept for exchange all Registrable
Securities validly surrendered in accordance with the terms of the Exchange
Offer and to extend the Exchange Offer with respect to untendered Registrable
Securities, except in contravention of the requirements of Section 2(d) hereof.


 


Each holder participating in the Exchange Offer shall
be required to represent to the Issuers and the Guarantors that at the time of
the consummation of the Exchange Offer (i) any Exchange Securities received by
such Holder will be acquired in the ordinary course of business, (ii) such
Holder will have no arrangements or understanding with any Person to
participate in the distribution of the Securities of the Exchange Securities
within the meaning of the 1933 Act and (iii) such Holder is not an affiliate of
either of the Issuers or any of the Guarantors within the meaning if Rule 405
of the 1933 Act.


 


(b)                                
In the event that (i)
the Issuers and the Guarantors determine that the Exchange Offer Registration
provided for in Section 2(a) above is not available or may not be consummated
as soon as practicable after the last Exchange Date because it would violate
applicable law or the applicable interpretations of the Staff of the SEC, (ii)
the Exchange Offer is not for any other reason consummated by September 20,
2005 or (iii) the Exchange Offer has been completed and in the opinion of
counsel for the Placement Agents a Registration Statement must be filed and a
Prospectus must be delivered by the Placement Agents in connection with any
offering or sale of Registrable Securities, the Issuers and the Guarantors
shall use their reasonable efforts to cause to be filed as soon as practicable
after such determination, date or notice of such opinion of counsel is given to
the Issuers, a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Securities and to have such Shelf
Registration Statement declared effective by the SEC. In the event the Issuers
and the Guarantors are required to file a Shelf Registration Statement solely
as a result of the matters referred to in clause (iii) of the preceding
sentence, the Issuers and the Guarantors shall use their reasonable efforts to
file and have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to
offers and sales of Registrable Securities held by the Placement Agents after
completion of the Exchange Offer. The Issuers and the Guarantors agree to use
their reasonable efforts to keep the Shelf Registration Statement continuously
effective until the expiration of the period referred to in Rule 144(k) under
the 1933 Act with respect to the Registrable Securities or such shorter period
that will terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf


 


7












 


Registration
Statement. The Issuers and the Guarantors further agree to supplement or amend
the Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Issuers and the
Guarantors for such Shelf Registration Statement or by the 1933 Act or by any
other rules and regulations thereunder for shelf registration or if reasonably
requested by a Holder with respect to information relating to such Holder, and
to use their reasonable efforts to cause any such amendment to become effective
and such Shelf Registration Statement to become usable as soon as thereafter
practicable. The Issuers and the Guarantors agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly
after its being used or filed with the SEC.


 


(c)                                 
The Issuers and the
Guarantors shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay
all underwriting discounts and commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder’s Registrable Securities pursuant to
the Shelf Registration Statement.


 


(d)                                
An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
that, if, after it has been declared effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have become effective during the period of such interference until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume. In the event the Exchange Offer is not consummated and a Shelf
Registration Statement is not declared effective on or prior to September 20,
2005, the interest rate on the Securities will be increased by 0.25% per annum
and the amount of such additional interest will increase by an additional 0.25%
for each subsequent 90-day period, up to a maximum of 1.0% over the interest
rate on the Securities, as determined in accordance with Section 4.1 of the
Indenture, until the Exchange Offer is consummated or a Shelf Registration
Statement is declared effective by the SEC.


 


The foregoing represents the sole monetary remedy to
the Placement Agents or any Holder in connection with any failure by the
Issuers and the Guarantors to comply with their obligations under Section 2(a)
and Section 2(b) hereof.


 


(e)                                 
The Issuers and the
Guarantors acknowledge that any failure by the Issuers and the Guarantors to
comply with their obligations under Section 2(a) and Section 2(b) hereof may
result in damages to the Placement Agents or the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the
Placement Agents or any Holder may be entitled to the equitable remedy of
specific performance to enforce the Issuers’s and the Guarantors’ obligations
under Section 2(a) and Section 2(b) hereof.


 


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3.                                      
Registration
Procedures.


 


In connection with the obligations of the Issuers and
the Guarantors with respect to the Registration Statements pursuant to Section
2(a) and Section 2(b) hereof, the Issuers and the Guarantors shall as
expeditiously as possible:


 


(a)                                 
prepare and file with
the SEC a Registration Statement on the appropriate form under the 1933 Act,
which form (x) shall be selected by the Issuers and the Guarantors and (y)
shall, in the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and (z) shall comply as
to form in all material respects with the requirements of the applicable form
and include all financial statements required by the SEC to be filed therewith,
and use their reasonable efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;


 


(b)                                
prepare and file with
the SEC such amendments and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration Statement effective for
the applicable period and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed pursuant to
Rule 424 under the 1933 Act; to keep each Prospectus current during the period
described under Section 4(3) and Rule 174 under the 1933 Act that is applicable
to transactions by brokers or dealers with respect to the Registrable
Securities or Exchange Securities;


 


(c)                                 
in the case of a
Shelf Registration, furnish to each Holder of Registrable Securities, to
counsel for the Placement Agents, to counsel for the Holders and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder or Underwriter may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities; and the Issuers
and the Guarantors consent to the use of such Prospectus and any amendment or
supplement thereto in accordance with applicable law by each of the selling
Holders of Registrable Securities and any such Underwriters in connection with
the offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto in
accordance with applicable law;


 


(d)                                
use their reasonable
efforts to register or qualify the Registrable Securities under all applicable
state securities or “blue sky” laws of such jurisdictions as any Holder of
Registrable Securities covered by a Registration Statement shall reasonably
request in writing by the time the applicable Registration Statement is
declared effective by the SEC; cooperate with such Holders in connection with
any filings required to be made with the National Association of Securities
Dealers, Inc.; and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the disposition in
each such jurisdiction of such Registrable Securities owned by such Holder; provided,
however, that the Issuers and the Guarantors shall not be required to
(i) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (ii) file any general consent to service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not so then
subject;


 


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(e)                                 
in the case of a
Shelf Registration, notify each Holder of Registrable Securities, counsel for
the Holders and counsel for the Placement Agents promptly and, if requested by
any such Holder or counsel, confirm such notification in writing (i) when a
Registration Statement has become effective and when any post-effective
amendment thereto has been filed and becomes effective, (ii) of any request by
the SEC or any state securities authority for amendments and supplements to a
Registration Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the SEC
or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (iv) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Issuers and the Guarantors
contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to be true and
correct in all material respects or if the Issuers and the Guarantors receive
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during the period
a Shelf Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not misleading
and (vi) of any determination by the Issuers and the Guarantors that a
post-effective amendment to a Registration Statement would be appropriate;


 


(f)                                   
make every reasonable
effort to obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment and provide immediate
notice to each Holder of the withdrawal of any such order;


 


(g)                                
in the case of a
Shelf Registration, furnish to each Holder of Registrable Securities, without
charge, at least one conformed copy of each Registration Statement and any
post-effective amendment thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested);


 


(h)                                
in the case of a
Shelf Registration, cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends and enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in such names
as the selling Holders may reasonably request in writing at least one business
day prior to the closing of any sale of Registrable Securities;


 


(i)                                    
in the case of a
Shelf Registration, upon the occurrence of any event contemplated by Section
3(e)(v) hereof, use its reasonable efforts to prepare and file with the SEC a
supplement or post-effective amendment to a Registration Statement or the
related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were


 


10












 


made, not misleading. The
Issuers and the Guarantors agree to notify the Holders to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an event,
and the Holders hereby agree to suspend use of the Prospectus until the Issuers
and the Guarantors have amended or supplemented, the Prospectus to correct such
misstatement or omission;


 


(j)                                    
a reasonable time
prior to the filing of any Registration Statement, any Prospectus, any
amendment to a Registration Statement or amendment or supplement to a
Prospectus or any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a Registration
Statement, provide copies of such document to the Placement Agents and their
counsel (and, in the case of a Shelf Registration Statement, the Holders and
their counsel) and make such of the representatives of the Issuers and the
Guarantors as shall be reasonably requested by the Placement Agents or their
counsel (and, in the case of a Shelf Registration Statement, the Holders or
their counsel) available for discussion of such document, and shall not at any
time file or make any amendment to the Registration Statement, any Prospectus
or any amendment of or supplement to a Registration Statement or a Prospectus
or any document which is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Placement Agents and their counsel
(and, in the case of a Shelf Registration Statement, the Holders and their
counsel) shall not have previously been advised and furnished a copy or to
which the Placement Agents or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) shall reasonably object;


 


(k)                                 
obtain a CUSIP number
for all Exchange Securities or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement;


 


(1)                                 
cause the Indenture
to be qualified under the Trust Indenture Act of 1939, as amended (the “TIA”),
in connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be; cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be
so qualified in accordance with the terms of the TIA; and execute, and use
their reasonable efforts to cause the Trustee to execute, all documents as may
be required to effect such changes and all other forms and documents required
to be filed with the SEC to enable the Indenture to be so qualified in a timely
manner;


 


(m)                              
in the case of a
Shelf Registration, make available for inspection by a representative of the
Holders of the Registrable Securities, any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and attorneys and
accountants designated by the Holders, at reasonable times and in a reasonable
manner, all financial and other records, pertinent documents and properties of
the Issuers and the Guarantors, and cause the respective officers, directors
and employees of the Issuers and the Guarantors to supply all information
reasonably requested by any such representative, Underwriter, attorney or
accountant in connection with a Shelf Registration Statement, subject to
executing a confidentiality undertaking in customary from with respect to
confidential or proprietary information of the Issuers or the Guarantors upon
request;


 


(n)                                
in the case of a
Shelf Registration, use its reasonable efforts to cause all Registrable
Securities to be listed on any securities exchange or any automated quotation
system


 


11












 


on
which similar securities issued by the Issuers are then listed if requested by
the Majority Holders, to the extent such Registrable Securities satisfy
applicable listing requirements;


 


(o)                                
use its reasonable
efforts to cause the Exchange Securities or Registrable Securities, as the case
may be, to be rated by two nationally recognized statistical rating
organizations (as such term is defined in Rule 436(g)(2) under the 1933 Act);


 


(p)                                
if reasonably
requested by any Holder of Registrable Securities covered by a Registration
Statement, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information with respect to such Holder as such
Holder reasonably requests to be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as the Issuers and the Guarantors have received notification of the matters to
be incorporated in such filing; provided  however that the Issuers
and the Guarantors shall not be required to file more than one post-effective
amendment during any 60 day period unless so required by applicable law or
regulation, by the SEC or as required under Section 6 hereof; and


 


(q)                                
in the case of a
Shelf Registration, enter into such customary agreements and take all such
other actions in connection therewith (including those requested by the Holders
of a majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities including, but not
limited to, an Underwritten Offering and in such connection, (i) to the extent
possible, make such representations and warranties to the Holders and any
Underwriters of such Registrable Securities with respect to the business of the
Issuers and their subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if
any, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the same if and
when requested, (ii) obtain opinions of counsel to the Issuers and the
Guarantors (which counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to the Holders and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter of
Registrable Securities, covering the matters customarily covered in opinions
requested in underwritten offerings, (iii) obtain “cold comfort” letters from
the independent certified public accountants of the Issuers and the Guarantors
(and, if necessary, any other certified public accountant of any subsidiary of
the Issuers, or of any business acquired by the Issuers and the Guarantors for
which financial statements and financial data are or are required to be
included in the Registration Statement) addressed to each selling Holder and
Underwriter of Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in “cold comfort” letters in
connection with underwritten offerings, and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Securities being sold or the Underwriters,
and which are customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Issuers and the
Guarantors made pursuant to clause (i) above and to evidence compliance with
any customary conditions contained in an underwriting agreement.


 


In the case of a Shelf Registration Statement, the
Issuers may require each Holder of Registrable Securities to furnish to the
Issuers such information regarding the Holder and the


 


12












 


proposed
distribution by such Holder of such Registrable Securities as the Issuers may
from time to time reasonably request in writing for inclusion in such Shelf
Registration Statement, and the Issuers or the Guarantors may exclude from such
Shelf Registration Statement the Registrable Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.


 


In the case of a Shelf Registration Statement, each
Holder agrees that, upon receipt of any notice from the Issuers and the
Guarantors of the happening of any event of the kind described in Section
3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder’s
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof, and, if so directed by the Issuers and the Guarantors,
such Holder will deliver to the Issuers and the Guarantors (at their expense)
all copies in its possession, other than permanent file copies then in such
Holder’s possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. If the Issuers and the Guarantors
shall give any such notice to suspend the disposition of Registrable Securities
pursuant to a Registration Statement, the Issuers and the Guarantors shall
extend the period during which the Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period
from and including the date of the giving of such notice to and including the
date when the Holders shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions. The Issuers may give any such
notice only twice during any 365 day period and any such suspensions may not
exceed 30 days for each suspension and there may not be more than two
suspensions in effect during any 365 day period.


 


The Holders of Registrable Securities covered by a
Shelf Registration Statement who desire to do so may sell such Registrable
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers (the “Underwriters”)
that will administer the offering will be selected by the Majority Holders of
the Registrable Securities included in such offering upon consultation with the
Issuers and the Guarantors; provided, however, that the Holders
shall be responsible for all underwriting commissions and discounts incurred in
connection with such underwritten offering.


 


4.                                      
Participation of
Broker-Dealers in Exchange Offer.


 


(a)                                 
The Staff of the SEC
has taken the position that any broker-dealer that receives Exchange Securities
for its own account in the Exchange Offer in exchange for Securities that were
acquired by such broker-dealer as a result of market-making or other trading
activities (a “Participating Broker-Dealer”), may be deemed to be an
“underwriter” within the meaning of the 1933 Act and must deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale of such
Exchange Securities.


 


The Issuers and the Guarantors understand that it is
the Staff’s position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a statement
to the above effect and the means by which Participating Broker-Dealers may
resell the Exchange Securities, without naming the Participating Broker-Dealers
or specifying the amount of Exchange Securities owned by them, such Prospectus
may


 


13












 


be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the 1933 Act in connection with resales of Exchange Securities for their
own accounts so long as the Prospectus otherwise meets the requirements of the
1933 Act.


 


(b)                                
In the light of the
above, notwithstanding the other provisions of this Agreement, the Issuers and
the Guarantors agree that the provisions of this Agreement as they relate to a
Shelf Registration shall also apply to an Exchange Offer Registration to the
extent, and with such reasonable modifications thereto as may be reasonably
requested by the Placement Agents or by one or more Participating
Broker-Dealers, in each case as provided in clause (ii) below, in order to
expedite or facilitate the disposition of any Exchange Securities by Participating
Broker-Dealers consistent with the positions of the Staff recited in Section
4(a) above; provided that:


 


(i)                                    
the Issuers and the
Guarantors shall not be required to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement, as would otherwise be
contemplated by Section 3(i), for a period exceeding 180 days after the last
Exchange Date (as such period may be extended pursuant to the penultimate
paragraph of Section 3 of this Agreement) and Participating Broker-Dealers
shall not be authorized by the Issuers and the Guarantors to deliver and shall
not deliver such Prospectus after such period in connection with the resales
contemplated by this Section 4; and


 


(ii)                                 
the application of
the Shelf Registration procedures set forth in Section 3 of this Agreement to
an Exchange Offer Registration, to the extent not required by the positions of
the Staff of the SEC or the 1933 Act and the rules and regulations thereunder,
will be in conformity with the reasonable request to the Issuers by the
Placement Agent or with the reasonable request in writing to the Issuers by one
or more broker-dealers who certify to the Placement Agents and the Issuers in
writing that they anticipate that they will be Participating Broker-Dealers;
and provided  further that, in connection with such application of
the Shelf Registration procedures set forth in Section 3 to an Exchange Offer
Registration, the Issuers and the Guarantors shall be obligated (x) to deal
only with one entity representing the Participating Broker-Dealers, which shall
be Morgan Stanley & Co. Incorporated unless it elects not to act as such
representative, (y) to pay the fees and expenses of only one counsel representing
the Participating Broker-Dealers, which shall be counsel to the Placement
Agents unless such counsel elects not to so act and (z) to cause to be
delivered only one, if any, “cold comfort” letter with respect to the
Prospectus in the form existing on the last Exchange Date and with respect to
such subsequent amendment or supplement, if any, effected during the period
specified in clause (i) above.


 


(c)                                 
The Placement Agents
shall have no liability to the Issuers, any Guarantor or any Holder with
respect to any request that it may make pursuant to Section 4(b) above.


 


5.                                     
Indemnification
and Contribution.


 


(a)                                 
Each of the Issuers
and the Guarantors agree jointly and severally to indemnify and hold harmless
(i) the Placement Agents, the Market Maker, each Holder and each


 


14












 


Person,
if any, who controls any Placement Agent, the Market Maker or any Holder within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act,
or is under common control with, or is controlled by, any Placement Agent, the
Market Maker or any Holder, from and against all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any Placement Agent, the Market Maker any Holder or any
such controlling or affiliated Person in connection with defending or
investigating any such action or claim, upon presentation of a statement or
statements therefor in reasonable detail) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or caused by any
untrue statement or alleged untrue statement of a material fact contained in
any Prospectus (as amended or supplemented if the Issuers and the Guarantors
shall have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact necessary to make
the statements therein in the light of the circumstances under which they were
made not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the Placement
Agents or any Holder, or the Market Maker’s Information furnished to the
Issuers in writing by the Placement Agents, the Market Maker or any selling Holder,
as applicable, expressly for use therein and (ii) the Market Maker from and
against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses reasonably incurred in connection
with any suit, action or proceeding or any claim asserted, as such fees and
expenses are reasonably incurred], that arise out of, or are based upon, any
breach by the Issuers or the Guarantors of their representations, warranties
and agreements contained in Section 6. In connection with any Underwritten
Offering permitted by Section 3, the Issuers and each Guarantor will also
jointly and severally indemnify the Underwriters, if any, selling brokers,
dealers and similar securities industry professionals participating in the distribution,
their officers and directors and each Person who controls such Persons (within
the meaning of the 1933 Act and the 1934 Act) to the same extent as provided
above with respect to the indemnification of the Holders, if requested in
connection with any Registration Statement; provided, however, that the
foregoing indemnity agreement with respect to any Registration Statement or
Prospectus shall not inure to the benefit of any Placement Agent from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Placement Agent, if a copy of the
Registration Statement or Prospectus (as then amended or supplemented if the
Issuers shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Placement Agent to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and if such
Registration Statement or Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities,
unless such failure is the result of noncompliance by the Issuers or the
Guarantors with Section 6(a) hereof.


 


(b)                                
Each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Issuers, the
Guarantors, the Placement Agents and the other selling Holders, and each of
their respective directors, officers who sign the Registration Statement and
each Person,


 


15












 


if
any, who controls the Issuers or the Guarantors, any Placement Agent and any
other selling Holder within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the same extent as the foregoing indemnity from
the Issuers and the Guarantors to the placement Agents and the Holders, but
only with reference to information relating to such Holder furnished to the
Issuers in writing by such Holder expressly for use in any Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).


 


(c)                                 
The Market Maker
agrees to indemnify and hold harmless the Issuers and the Guarantors, the
directors of the Issuers and the Guarantors and each officer of the Issuers and
the Guarantors who signed the Market Making Registration Statement and each
Person, if any, who controls the Issuers or the Guarantors within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent
as the indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with any Market Maker’s Information
furnished to the Issuers in writing by the Market Maker expressly for use in
any Market Making Registration Statement and any Prospectus.


 


(d)                                
In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
paragraph (a), (b) or (c) above, such Person (the “indemnified party”) shall
promptly notify the Person against whom such indemnity may be sought (the
“indemnifying party”) in writing and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party otherwise than under this
Section 5. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (a)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Placement Agents or the Market Maker and all Persons, if any,
who control any Placement Agent or the Market Maker within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act, (b) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for the Issuers, the Guarantors, their respective directors and officers who
sign the Registration Statement and each Person, if any, who controls the
Issuers or the Guarantors within the meaning of either such Section 15 of the
1933 Act or Section 20 of the 1934 Act and (c) the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Holders and
all Persons, if any, who control any Holders within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In such case involving the Placement Agents and Persons who control
the Placement Agents,


 


16












 


such firm shall be
designated in writing by Morgan Stanley & Co. Incorporated. In such case
involving the Market Maker and Persons who control the Market Maker, such firm
shall be designated in writing by the Market Maker. In such case involving the
Holders and such Persons who control Holders, such firm shall be designated in
writing by the Majority Holders. In all other cases, such firm shall be
designated by the Issuers. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party for such fees and expenses of counsel in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which such indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and does not
include any finding of fault, culpability or failure to act by or behalf of any
indemnified party.


 


(e)                                 
If the
indemnification provided for in paragraph (a), (b) or (c) of this Section 5 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers and the Guarantors, on the one hand, and the Holders and the Market
Maker, on the other hand, from the offering of the Securities or, if the
allocation provided for in paragraph (a), (b) and (c) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in this clause 5(d) but also the relative fault of
the Issuers and the Guarantors on the one hand and of the Holders and the
Market Maker on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of the Issuers and
the Guarantors, on the one hand, and the Holders and the Market Maker, on the
other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Issuers and the Guarantors or by the Holders or the Market Maker, as
applicable, and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Holders’
respective obligations to contribute pursuant to this Section 5(d) are several
in proportion to the respective principal amount of Registrable Securities of
such Holder that were registered pursuant to a Registration Statement.


 


17












 


(f)                                   
The Issuers, the
Guarantors, each Holder and the Market Maker agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (e) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (e) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, nor
Holder nor the Market Maker shall be required to indemnify or contribute any
amount in excess of the amount by which the total price at which Registrable
Securities were sold by such Holder or the Registrable Securities sold by the
Market Maker exceeds the amount of any damages that such Holder or the Market
Maker has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this Section 5
are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.


 


The indemnity and contribution provisions contained in
this Section 5 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Placement Agents, the Market Maker, any Holder or any Person
controlling any Placement Agent, the Market Maker or any Holder, or by or on
behalf of the Issuers, the Guarantors, their respective officers or directors
or any Person controlling the Issuers or the Guarantors, (iii) acceptance of
any of the Exchange Securities and (iv) any sale of Registrable Securities
pursuant to a Shelf Registration Statement or the Market Making Registration
Statement.


 


6.                                   
Market Making.


 


(a)                               
For so long as any of
the Securities or Exchange Securities are outstanding and J.P. Morgan
Securities Inc. (in such capacity, the “Market Maker”) or any of its affiliates
(as defined in the rules and regulations of the SEC) owns any equity securities
of the Issuers, the Guarantors or any of their affiliates and proposes to make
a market in the Securities or Exchange Securities as part of its business in
the ordinary course, the following provisions shall apply for the sole benefit
of the Market Maker:


 


(i)                                    
The Issuers and the
Guarantors shall (A) on the date that the Exchange Offer Registration Statement
or, if required hereby, the Shelf Registration Statement is filed with the SEC,
file a registration statement (the “Market Making Registration Statement”)
(which may be the Exchange Offer Registration Statement or the Shelf Registration
Statement if permitted by the rules and regulations of the SEC) and use their
reasonable efforts to cause such Market Making Registration Statement to be
declared effective by the SEC on or prior to the consummation of the Exchange
Offer or the effective date of the Shelf Registration Statement, as applicable;
(B) periodically amend such Market Making Registration Statement so that the


 


18












 


information contained
therein complies with the requirements of Section 10(a) under the 1933 Act and
(C) amend the Market Making Registration Statement or amend or supplement the
related Prospectus when necessary to reflect any material changes in the
information provided therein; provided, however, that (1) prior to filing the
Market Making Registration Statement, any amendment thereto or any supplement
to the related Prospectus, the Issuers will furnish to the Market Maker copies
of all such documents proposed to be filed, which documents will be subject to
the review of the Market Maker and its counsel and (2) the Issuers and the
Guarantors will not file the Market Making Registration Statement, any
amendment thereto or any amendment or supplement to the related Prospectus to
which the Market Maker and its counsel shall reasonably object unless the
Issuers are advised by counsel that such Market Making Registration Statement,
amendment or supplement is required to be filed under applicable securities
laws and the Issuers will provide the Market Maker and its counsel with copies
of the Market Making Registration Statement, the related Prospectus and each
amendment and supplement thereto filed.


 


(ii)                                 
The Issuers shall
notify the Market Maker and, if requested by the Market Maker, confirm such
advice in writing, (A) when any Market Making Registration Statement, any
post-effective amendment to the Market Making Registration Statement or any
amendment or supplement to the related Prospectus has been filed, and, with
respect to any Market Making Registration Statement or any post-effective
amendment, when the same has become effective; (B) of any request by the SEC
for any post-effective amendment to the Market Making Registration Statement,
any supplement or amendment to the related Prospectus or for additional
information; (C) of the issuance by the SEC of any stop order suspending the
effectiveness of the Market Making Registration Statement or the initiation of
any proceedings for that purpose; (D) of the receipt by the Issuers of any
notification with respect to the suspension of the qualification of the
Securities or Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceedings for such purpose; and (E) of the
happening of any event that makes any statement made in the Market Making
Registration Statement, the related Prospectus or any amendment or supplement
thereto untrue or that requires the making of any changes in the Market Making
Registration Statement, such Prospectus or any amendment or supplement thereto,
in order to make the statements therein not misleading.


 


(iii)                              
If any event
contemplated by Section 6(a)(ii)(B) through (E) occurs during the period for
which the Issuers and the Guarantors are required to maintain an effective
Market Making Registration Statement, the Issuers and the Guarantors shall
promptly prepare and file with the SEC a post-effective amendment to the Market
Making Registration Statement or an


 


19












 


amendment or supplement
to the related Prospectus or file any other required document so that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.


 


(iv)                             
In the event of the
issuance of any stop order suspending the effectiveness of the Market Making
Registration Statement or of any order suspending the qualification of the
Securities or Exchange Securities for sale in any jurisdiction, the Issuers and
the Guarantors shall promptly use their reasonable efforts to obtain its
withdrawal.


 


(v)                                
The Issuers shall
furnish to the Market Maker, without charge, (i) at least one conformed copy of
the Market Making Registration Statement and any post effective amendment
thereto; and (ii) as many copies of the related Prospectus and any amendment or
supplement thereto as the Market Maker may reasonably request.


 


(vi)                             
The Issuers and the
Guarantors shall consent to the use of the Prospectus contained in the Market
Making Registration Statement or any amendment or supplement thereto by the
Market Maker in connection with its market-making activities.


 


(vii)                          
Notwithstanding the
foregoing provisions of this Section 6, the Issuers and the Guarantors may for
valid business reasons, including without limitation, a potential material
acquisition, divestiture of assets or other material corporate transaction,
notify the Market Maker in writing that the Market Making Registration
Statement is no longer effective or the Prospectus included therein is no
longer usable for offers and sales of Securities or Exchange Securities;
provided that the use of the Market Making Registration Statement or the
Prospectus contained therein shall not be suspended for more than 60 days
(whether or not consecutive) in the aggregate in any 12-month period. The
Market Maker agrees that upon receipt of any notice from the Issuers pursuant to
this Section 6(a)(vii), it will discontinue use of the Prospectus contained in
the Market Making Registration Statement until receipt of copies of the
supplemented or amended Prospectus relating thereto or until advised in writing
by the Issuers that the use of the Prospectus contained in the Market Making
Registration Statement may be resumed.


 


(b)                                
In connection with
the Market Making Registration Statement, the Issuers shall (i) make reasonably
available for inspection by a representative of, and counsel acting for, the
Market Maker all relevant financial and other records, pertinent corporate
documents and properties of the Issuers and their subsidiaries and (ii) use its
reasonable efforts to have its officers, directors, employees, accountants and
counsel supply all relevant information reasonably requested by such
representative or counsel or the Market Maker.


 


20












 


(c)                                 
Prior to the
effective date of the Market Making Registration Statement, the Issuers and the
Guarantors shall use their reasonable efforts to register or qualify the
Securities or Exchange Securities for offer and sale under the securities or
blue sky laws of such jurisdictions as the Market Maker reasonably requests in
writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the Securities or Exchange
Securities covered by the Market Making Registration Statement; provided that
the Issuers and the Guarantors shall not be required to (i) qualify as a
foreign corporation or other entity or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify, (ii) file
any general consent to subject itself to service of process in any such
jurisdictions or (iii) subject itself to taxation in any such jurisdiction if
it not so then subject.


 


(d)                                
The Issuers and the
Guarantors represent and agree that the Market Making Registration Statement,
any post-effective amendments thereto, any amendments or supplements to the
related Prospectus and any documents filed by them under the 1934 Act will,
when they become effective or are filed with the SEC, as the case may be,
conform in all material respects to the requirements of the 1933 Act and the
1934 Act and the rules and regulations of the SEC thereunder and will not, as
of the effective date of such Market Making Registration Statement or
post-effective amendments and as of the filing date of amendments or
supplements to such Prospectus or filings under the 1934 Act, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in or omitted
from the Market Making Registration Statement or the related Prospectus in
reliance upon and in conformity with written information furnished to the
Issuers by the Market Maker specifically for inclusion therein, which
information the parties hereto agree will be limited to the statements
concerning the market making activities of the Market Maker to be set forth on
the cover page and in the “Plan of Distribution” section of the Prospectus (the
“Market Maker’s Information”).


 


(e)                                 
At the time of
effectiveness of the Market Making Registration Statement and concurrently with
each time the Market Making Registration Statement or the related Prospectus
shall be amended or such Prospectus shall be supplemented, the Issuers shall
(if requested by the Market Maker) furnish the Market Maker with a certificate
of its Chief Executive Officer or any Senior Vice President and its Chief
Financial Officer to the effect that:


 


(i)                                    
the Market Making
Registration Statement has been declared effective;


 


(ii)                                 
in the case of an
amendment to the Market Making Registration Statement, such amendment has
become effective under the 1933 Act as of the date and time specified in such
certificate, if applicable; and in the case of an amendment or supplement to
the Prospectus, such amendment or supplement to the Prospectus was filed with
the SEC pursuant to the subparagraph of Rule 424(b) under the 1933 Act
specified in such certificate on the date specified therein;


 


(iii)                             
to the knowledge of
such officers, no stop order suspending the


 


21












 


effectiveness of the
Market Making Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the SEC; and


 


(iv)                             
such officers have
examined the Market Making Registration Statement and the Prospectus (and, in
the case of an amendment or supplement, such amendment or supplement) and, to
the knowledge of such officers, as of the date of such Market Making
Registration Statement, Prospectus, amendment or supplement, as applicable, the
Market Making Registration Statement and the Prospectus, as amended or
supplemented, if applicable, did not include any untrue statement of a material
fact and did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.


 


(f)                                   
At the time of
effectiveness of the Market Making Registration Statement and concurrently with
each time the Market Making Registration Statement or the related Prospectus
shall be amended or such Prospectus shall be supplemented, the Issuers shall
(if requested by the Market Maker) furnish the Market Maker with the written
opinion of counsel for the Issuers satisfactory to the Market Maker to the
effect that:


 


(i)                                    
the Market Making
Registration Statement has been declared effective;


 


(ii)                                 
in the case of an
amendment to the Market Making Registration Statement, such amendment has
become effective under the 1933 Act as of the date and time specified in such
opinion, if applicable; and in the case of an amendment or supplement to the
Prospectus, such amendment or supplement to the Prospectus was filed with the
SEC pursuant to the subparagraph of Rule 424(b) under the 1933 Act specified in
such opinion on the date specified therein;


 


(iii)                              
to the knowledge of
such counsel, no stop order suspending the effectiveness of the Market Making
Registration Statement has been issued and no proceeding for that purpose is
pending or threatened by the SEC; and


 


(iv)                             
such counsel has
reviewed the Market Making Registration Statement and the Prospectus (and, in
the case of an amendment or supplement, such amendment or supplement) and
participated with officers of the Issuers and independent public accountants
for the Issuers in the preparation of such Market Making Registration Statement
and Prospectus (and, in the case of an amendment or supplement, such amendment
or supplement) and has no reason to believe that (except for the financial
statements and other financial and statistical data contained therein as to
which such counsel need express no belief) as of the date of such Market Making
Registration Statement, Prospectus, amendment or supplement, as applicable, the
Market Making Registration Statement and the Prospectus,


 


22












 


as amended or
supplemented, if applicable, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.


 


(g)                                
At the time of
effectiveness of the Market Making Registration Statement and concurrently with
each time the Market Making Registration Statement or the related Prospectus
shall be amended or such Prospectus shall be supplemented to include audited
annual financial information, the Issuers shall (if requested by the Market
Maker) furnish the Market Maker and its counsel with a letter of Deloitte & Touche LLP (or other independent public
accountants for the Issuers or the Guarantors of nationally recognized
standing) in form satisfactory to the Market Maker, addressed to the Market
Maker and dated the date of delivery of such letter, (i) confirming that they
are independent public accountants within the meaning of the 1933 Act and are
in compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the SEC and (ii) in all other
respects, substantially in the form of the letter delivered to the Initial
Purchasers pursuant to Section 5(e) of the Placement Agreement, with, in the
case of an amendment or supplement that includes audited financial information,
such changes as may be necessary to reflect the amended or supplemented
financial information.


 


(h)                                
The Issuers and the
Guarantors, on the one hand, and the Market Maker, on the other hand, hereby
agree to indemnify each other, and, if applicable, contribute to the other, in
accordance with Section 5 of this Agreement.


 


(i)                                    
The Issuers and the
Guarantors will comply with the provisions of this Section 6 at their own
expense and will reimburse the Market Maker for its expenses associated with
this Section 6 (including reasonable fees of counsel for the Market Maker).


 


(j)                                    
The agreements
contained in this Section 6 and the representations, warranties and agreements
contained in this Agreement shall survive all offers and sales of the
Securities and Exchange Securities and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.


 


(k)                                 
For purposes of this
Section 6, (i) any reference to the terms “amend,” “amendment” or “supplement”
with respect to the Market Making Registration Statement or the Prospectus
contained therein shall be deemed to refer to and include the filing under the
1934 Act of any document deemed to be incorporated therein by reference and
(ii) any reference to the terms “Securities” or “Exchange Securities” shall be
deemed to refer to and include any securities issued in exchange for or with
respect to such Securities or Exchange Securities.


 


7.                                      
Miscellaneous.


 


(a)                                 
No Inconsistent
Agreements. The
Issuers and the Guarantors have not entered into, and on or after the date of
this Agreement will not enter into, any agreement which is inconsistent with
the rights granted to the Holders of Registrable Securities or the Market Maker
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to


 


23












 


the
Holders and the Market Maker hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the Issuers’ or the
Guarantors’ other issued and outstanding securities under any such agreements.


 


(b)                                
Amendments and
Waivers. The
provisions of this Agreement, including the provisions of this sentence, may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given unless the Issuers and the
Guarantors have obtained the written consent of Holders of at least a majority
in aggregate principal amount of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or consent and,
with respect to the provisions of Section 6, the written consent of the Market
Maker; provided, however, that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of Section 5
hereof shall be effective as against any Holder of Registrable Securities or
the Market Maker unless consented to in writing by such Holder or the Market
Maker, as applicable.


 


(c)                                 
Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address given by
such Holder to the Issuers by means of a notice given in accordance with the
provisions of this Section 7(c), which address initially is, with respect to
the Placement Agents, the address set forth in the Placement Agreement; (ii) if
to the Market Maker, to J.P. Morgan Securities Inc. 270 Park Avenue, New York,
NY, 10017, attention: Matthew Lyness, and thereafter at such other address,
notice of which is given in accordance with the provisions of this Section
7(c); and (iii) if to the Issuers and the Guarantors, initially at the Issuers’
address set forth in the Placement Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 7(c).


 


All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered;
five business days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next business day if timely delivered to an air courier
guaranteeing overnight delivery.


 


Copies of all such notices, demands, or other
communications shall be concurrently delivered by the Person giving the same to
the Trustee, at the address specified in the Indenture.


 


24












 


(d)                                
Successors and
Assigns. This
Agreement shall inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the parties, including, without limitation
and without the need for an express assignment, subsequent Holders; provided
that nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the
Placement Agreement. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement and such Person shall be entitled
to receive the benefits hereof. The Placement Agents (in their capacity as
Placement Agents) shall have no liability or obligation to the Issuers or the
Guarantors with respect to any failure by a Holder to comply with, or any
breach by any Holder of, any of the obligations of such Holder under this
Agreement.


 


(e)                                 
Purchases and
Sales of Securities.
Except as contemplated by Section 6 of this Agreement with respect to the
Market Maker, the Issuers and the Guarantors shall not, and shall use their
reasonable best efforts to cause their affiliates (as defined in Rule 405 under
the 1933 Act) not to, purchase and then resell or otherwise transfer any
Securities.


 


(f)                                   
Third Party
Beneficiary. The
Holders shall be third party beneficiaries to the agreements made hereunder
(excluding those agreements made in Section 6 hereto) between the Issuers and
the Guarantors, on the one hand, and the Placement Agents and the Market Maker,
on the other hand, and shall have the right to enforce such agreements directly
to the extent they deem such enforcement necessary or advisable to protect
their rights or the rights of Holders hereunder.


 


(g)                                
Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.


 


(h)                                
Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


 


(i)                                    
Governing Law. This Agreement shall be governed by the
laws of the State of New York.


 


(j)                                    
Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.


 


25












 


IN WITNESS WHEREOF, this Agreement has been executed
by the parties hereto as of the date first above written.


 


	
   

  	
  PROGRESS RAIL SERVICES
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P.
  Ainsworth

  	
   

  
	
   

  	
   

  	
  Name: William P.
  Ainsworth

  
	
   

  	
   

  	
  Title: Vice President

  



 


 


	
   

  	
  PROGRESS METAL
  RECLAMATION COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P.
  Ainsworth

  	
   

  
	
   

  	
   

  	
  Name: William P.
  Ainsworth

  
	
   

  	
   

  	
  Title: Vice President

  



 


 


	
   

  	
  PROGRESS RAIL SERVICES
  HOLDINGS CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William H.
  Wangerin, Jr.

  	
   

  
	
   

  	
   

  	
  Name: William H.
  Wangerin, Jr.

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  



 


 


	
   

  	
  FM INDUSTRIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P.
  Ainsworth

  	
   

  
	
   

  	
   

  	
  Name: William P.
  Ainsworth

  
	
   

  	
   

  	
  Title: President

  



 


 


	
   

  	
  SOUTHERN MACHINE AND
  TOOL COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P.
  Ainsworth

  	
   

  
	
   

  	
   

  	
  Name: William P.
  Ainsworth

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  



 


Progress Rail Registration Rights Agreement Signature
Page


 












 


	
   

  	
  RAILCAR, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P.
  Ainsworth

  	
   

  
	
   

  	
   

  	
  Name: William P.
  Ainsworth

  
	
   

  	
   

  	
  Title: President

  



 


 


	
   

  	
  CHEMETRON-RAILWAY
  PRODUCTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P.
  Ainsworth

  	
   

  
	
   

  	
   

  	
  Name: William P.
  Ainsworth

  
	
   

  	
   

  	
  Title: President

  



 


 


	
   

  	
  UNITED INDUSTRIES
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P.
  Ainsworth

  	
   

  
	
   

  	
   

  	
  Name: William P.
  Ainsworth

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  



 


 


	
   

  	
  PROGRESS VANGUARD
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P.
  Ainsworth

  	
   

  
	
   

  	
   

  	
  Name: William P.
  Ainsworth

  
	
   

  	
   

  	
  Title: President

  



 


 


	
   

  	
  S&L RAILROAD, LLC

  
	
   

  	
  By: Progress Rail
  Services Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P.
  Ainsworth

  	
   

  
	
   

  	
   

  	
  Name: William P.
  Ainsworth

  
	
   

  	
   

  	
  Title: President

  



 












 


	
   

  	
  KENTUCKIANA RAILCAR
  REPAIR & STORAGE

  FACILITY, LLC

  
	
   

  	
   

  
	
   

  	
   

  	
  UNITED
  INDUSTRIES CORPORATION,

  AS MEMBER

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P.
  Ainsworth

  	
   

  
	
   

  	
   

  	
  Name: William P.
  Ainsworth

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer of Member

  



 


 


	
   

  	
  WEST VIRGINIA AUTO
  SHREDDING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ William P.
  Ainsworth

  	
   

  
	
   

  	
   

  	
  Name: William P.
  Ainsworth

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  



 


 


	
   

  	
  PROGRESS RAIL HOLDINGS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ William P.
  Ainsworth

  	
   

  
	
   

  	
   

  	
  Name: William P.
  Ainsworth

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  



 












 


	
  Confirmed and accepted
  as of the date first above written:

  
	
   

  
	
  MORGAN STANLEY &
  CO. INCORPORATED

  J.P. MORGAN SECURITIES INC.

  
	
   

  
	
  By: MORGAN STANLEY
  & CO. INCORPORATED

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Kenneth G. Pott

  	
   

  
	
   

  	
  Name: Kenneth G. Pott

  
	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  



 


 


	
  By: J.P. MORGAN
  SECURITIES INC., in its role as Market Maker

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Thomas M. Bergen

  	
   

  
	
   

  	
  Name: Thomas M. Bergen

  
	
   

  	
  Title: Vice President